U.S. v. Welch

• Decision Date: 19 March 1991
• Docket Number: No. 89-5090,89-5090
• Citation: 928 F.2d 915
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Fred Bennett WELCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 915

928 F.2d 915

UNITED STATES of America Plaintiff-Appellee, v. Fred Bennett WELCH, Defendant-Appellant.

No. 89-5090.

United States Court of Appeals,

Tenth Circuit.

March 19, 1991.

Stephen J. Greubel, Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant.

Susan W. Pennington, Asst. U.S. Atty., (Tony M. Graham, U.S. Atty., with her on the brief), Tulsa, Oklahoma, for plaintiff-appellee.

Before McKAY, McWILLIAMS and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Welch was convicted and sentenced on four counts of possession of stolen mail in violation of 18 U.S.C. Sec. 1708. He was sentenced to four years imprisonment on count I, and to concurrent three-year terms on counts II, III and IV. The concurrent three-year terms were to run consecutive to the four-year term imposed on count I, for a total of seven years. On direct appeal, we modified the judgment to constitute only one conviction, affirmed the judgment as modified and remanded the case for resentencing. ¹ United States v. Welch, No. 82-2368, unpub. order and judgment at 10 (Feb. 27, 1989).

When his direct appeal was decided, defendant was in state custody for a separate offense. Id. at 1 n. 2. When he was resentenced, he was still in state custody for a separate offense. See Sentencing Tr. at 31-33. Thus, defendant had not begun to serve his federal sentence. ² After noting the defendant's record of several felony convictions, the district court resentenced defendant to five years imprisonment on the only count remaining. Defendant appeals, claiming that the district court violated the constitutional guarantee against double jeopardy when it imposed a sentence in excess of four years, the maximum imposed on a single count at defendant's initial sentencing. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and we affirm.

This case is controlled by our recent decision in United States v. Jackson, 903 F.2d 1313, 1315-1316 (10th Cir.), reh'g en banc granted on other grounds, 921 F.2d 985 (1990). In Jackson, we confronted a situation in which the defendant appealed and was resentenced under the Sentencing Guidelines, having been sentenced incorrectly under pre-Guidelines law. 903 F.2d at 1314. We assumed, arguendo, that the second sentence was more severe than the first and announced two important principles. Id. at 1315. First, the relevant double jeopardy analysis requires us to ask whether the defendant had a " 'legitimate expectation of finality in his original sentence.' " Id. (paraphrasing United States v. DiFrancesco, 449 U.S. 117, 137, 139, 101 S.Ct. 426, 437, 438, 66 L.Ed.2d 328 (1980)); see also Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 2527-28, 105 L.Ed.2d 322 (majority opinion) & 109 S.Ct. at 2532-33 (Scalia, J., dissenting) (1989); Pennsylvania v. Goldhammer, 474 U.S. 28, 30, 106 S.Ct. 353, 354, 88 L.Ed.2d 183 (1985) (per curiam); United States v. Smith, 929 F.2d 1453, 1457 (10th Cir.1991) (applying "legitimate expectation ... finality" test); United States v. Earley, 816 F.2d 1428, 1433-34 (10th Cir.1987) (en banc) (recognizing "reasonable expectation of finality" test). Second, we held that "[a] defendant can acquire no legitimate expectation of finality in an illegal sentence, because such sentence remains subject to modification." Jackson, 903 F.2d at 1316 (relying upon Jones, 109 S.Ct. at 2532-33 (Scalia, J., dissenting)); see also United States v. Smith, 929 F.2d at 1460 (McKay, J., dissenting) (recognizing that a trial court may increase a sentence after final judgment when the original sentence "[w]as illegal" or "[w]as overturned by an appeals court"); United States v. Jordan, 895 F.2d 512, 516 (9th Cir.1989) (no legitimate expectation of finality in a sentence which is unlawful and challenged by defendant); United States v. Kane, 876 F.2d 734, 737 (9th Cir.) ("Generally, a defendant can acquire no expectation of finality in an illegal sentence, which remains subject to modification."), cert. denied, --- U.S. ----, 110 S.Ct. 173, 107 L.Ed.2d 130 (1989); United States v. Pimienta-Redondo, 874 F.2d 9, 16 (1st Cir.) (en banc) (when defendant has placed uncompleted sentence at issue on direct appeal, no legitimate expectation of finality exists), cert. denied, --- U.S. ----, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989). As stated by the Eleventh Circuit [A]ny expectation of finality in a sentence is wholly absent where ... the defendant requests that his prior sentence be nullified. The defendant has, by his own hand, defeated his expectation of finality and "the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice."

United States v. Cochran, 883 F.2d 1012, 1017 (11th Cir.1989) (quoting United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978)). Given that sentencing is often a "package deal," we have noted that "the appealing defendant cannot claim an expectation that the sentence on any particular count is irrevocably final." Earley, 816 F.2d at 1433 n. 6.

These principles are fully applicable to the instant case. Defendant, who challenged his multiple-count sentence on direct appeal, had no legitimate expectation of finality in the original unlawful sentence. Accordingly, the resentencing did not violate the double jeopardy clause. We reject defendant's argument that the district court was constrained by the first sentence; under these circumstances, the district court could impose a greater or lesser sentence upon resentencing given defendant's lack of a reasonable expectation of finality in the first sentence.

Defendant contends that this case is controlled by United States v. Buchanan, 830 F.2d 146 (10th Cir.1987), in which the defendant was convicted of three offenses, but was improperly sentenced on two of the offenses which merged. Id. at 149-150. The case was remanded for resentencing on the merged counts as well as the other count. Id. at 150. The court concluded: "In no event should the new sentence on any one count exceed the sentence originally imposed on that count." Id. (citing United States v. Edick, 603 F.2d 772, 775-78 (9th Cir.1979)). Because Buchanan relied upon Edick, we must evaluate Edick's vitality given the recent trend of courts, including the Ninth Circuit, to focus on a defendant's reasonable expectation of finality when resolving double jeopardy claims related to increased sentences.

In Edick, the defendant was sentenced to unlawful consecutive sentences and had fully served his sentence on one of the counts. 603 F.2d at 775, 778. The Ninth Circuit reasoned that because the sentence had been served on one of the counts, resentencing upon the other count would violate double jeopardy. Id. at 778. The case also contains dicta that "[i]t is the amount originally imposed on each count, rather than the maximum that could have been imposed, which sets the double jeopardy 'ceiling' on resentencing." Id. at 776 n. 4 (emphasis in original).

Two of the cases relied upon in Edick, Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873) and United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), were given a significantly more limited interpretation by the Supreme Court in DiFrancesco. 449 U.S. at 138-39, 101 S.Ct. at 438. The Ninth Circuit subsequently has determined that Edick must be read in light of DiFrancesco, see United States v. Hagler, 709 F.2d 578, 579 (9th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983), and has acknowledged that DiFrancesco "disapproved some of the reasoning ... used in Edick," United States v. Arellano-Rios, 799 F.2d 520, 523 (9th Cir.1986). While Edick has not been overruled by the Ninth Circuit, it has been limited to circumstances in which the defendant has fully served his sentence on the rationale that a defendant's reasonable expectation of finality arises, and jeopardy attaches, when a defendant has fully served the sentence. Arellano-Rios, 799 F.2d at 524. We need not address the vitality of Edick as limited by the Ninth Circuit, for it is clear that the narrowed Edick has no applicability to the instant case where the defendant did not even begin, let alone fully serve, his federal sentence. In light of Buchanan's reliance upon Edick and this circuit's discussion of the legitimate expectation of finality test in Jackson and the en banc case of Earley, we decline to apply the result of Buchanan to these facts. ³ Buchanan did not consider DiFrancesco or Earley and did not anticipate our decision in Jackson.

Courts do not decide what is not before them. Part II of the concurring opinion holds that the sentence in this case does not contravene North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.2072, 23 L.Ed.2d 656 (1979), under a plain error analysis, and, in so doing, announces principles to govern these types of claims. Concurring Op. at 919-920. Petitioner never raised this argument below or on appeal, ⁴ probably because the facts provide no basis for it. ⁵ Regardless, the concurring opinion merely invites a petition for rehearing on this ground, which plainly is foreclosed (based upon waiver) and is not before us. In the words of Judge Lamm: " 'Reserve your fire,' said the Bunker Hill officer, 'till you see the white of their eyes;' that is, till you have a mark to shoot at in close range. May not judicial 'fire' profit by that advice?" Nalley v. Home Ins. Co., 250 Mo. 452, 157 S.W. 769, 775 (1913) (Lamm, J., concurring).

AFFIRMED.

McKAY, Circuit Judge, concurring:

I agree with the result reached by the court in this case. However, I am unable to agree with all of the reasoning given by the court and therefore state my reasons for concurrence briefly and separately. A fuller exposition of my understanding of Double Jeopardy law is set forth in United States v. Smith, 929 F.2d 1453 (10th Cir.1991) (McKay, J., dissenting). It is therefore unnecessary to repeat it in this...